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Theoretically Speaking ...

By Arthur Ripstein

This article was first published in the Spring 2005 issue of Nexus.

A philosopher is a person who is puzzled by things that other people find obvious. For example, everybody knows what a legal system is: it's a system made up of legislatures, courts, various enforcement bodies, people doing various things, according to prescribed institutional roles. Philosophers find these obvious facts fascinating, in part because legal systems claim powers that make them different from other kinds of social organizations. The law claims to be entitled to tell people what to do, and to force them to do as they are told. These powers are familiar in the criminal law, but they are just as much a part of the tax code or the law of private remedies. If I owe you (or Revenue Canada) money, I have to pay, no matter what I think about it. The law claims to apply to everyone within its jurisdiction. The leader of a criminal syndicate may be able to get people to do as he says (through criminal means), and might even announce his entitlement to do them, however legal systems are different. Legal systems claim to do justice, and they claim that people have an obligation to obey, unlike the crime boss, who can only provide an incentive to obey.

Legal philosophers try to explain and evaluate these various claims. How does law differ from other forms of social order? How does it differ from morality or etiquette, or the organized use of force? Nobody thinks that the law is equivalent to any of these things, but the contrasts illuminate more general moral questions about law. Is there an obligation to obey the law? If so, how far does this obligation extend? Are particular legal rules historical accidents or exercises of reason? Is law an exercise of reason, or an unfortunate compromise with the challenges of human social life?

These questions are as old as philosophy itself. Western philosophy began with Plato's investigation of the possibility of a just system of government. Lawmaking was Plato's model of the power of reason, contrasted with both passion and power. It was also the model in which he posed the question of justice.

A century ago, Oliver Wendell Holmes rejected Plato's approach in his remark that "the life of the law has not been reason. It has been experience." Holmes was famously suspicious of all appeals to principle, since he thought that excessive worry about principle led to unnecessary bloodshed in the American Civil War. But he wasn't just revealing his personal proclivities. He also issued a philosophical challenge to the law's claim to do justice.

Holmes's challenge can be raised at different levels. At the highest level of generality, we can ask whether a legal system, simply because it is a legal system, can claim to do justice, or legitimately demand that its citizens obey it. Holmes's own answer was negative. He thought that the only point in asking about the law was to help what he called "the bad man" to plan around the obstacles that were likely to be put in his way.

Others have thought that the law holds out more promise, that its claim to do justice almost always has something to it. Still others have thought that as the law develops, its own structures pull it in the direction of justice. Other pressures may pull it the other way, but some have thought that legality itself imposes certain requirements.

The same challenge can be posed about the details of legal doctrine. Holmes makes his remark in the context of his lectures, The Common Law, in the process of a detailed exploration of the ideas animating legal doctrine. Holmes claimed to find only expressions of social tastes and policies in the law, praising its "inevitable philistinism." Others, including the scholars represented in this issue, have tried to understand legal doctrine not as a series of compromises between battling policies, but as expressions of underlying ideas of justice. Specific exercises of legal power raise questions of the understanding of social life and human interaction that it presupposes, and whether it is consistent with the freedom and dignity of those over whom it is exercised. A philosophical analysis of doctrine doesn't pretend to provide an algorithm for deciding cases. Abstract arguments are almost always silent about how to classify particulars. But that limit of what Holmes mocked as "logic" leaves room for philosophy to show that the proposed solution in a specific case is incoherent or at odds with the rest of the law.

Philosophical questions about doctrine feed back into legal ones. Does the law have a single consistent approach to this question? Is this decision a development of the law, or a move away from it? Is it consistent with the way the law has thought about a particular power or right? The only way to answer these questions is by trying to map out the structures through which the law thinks about the use of force, and tells people what they are allowed to do. Areas of law as different as constitutional law and torts may think about these questions in different ways. But they have to think about them. And so do we, as philosophers and law teachers.